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February 10, 1986


The opinion of the court was delivered by: Mihm, District Judge.


This case involves a suit brought by the United States for damage to the wall of a lock on the Mississippi River. The case presents some issues that are matters of admiralty law, as well as legal issues regarding the meaning and scope of a number of United States statutes. The Court held a bench trial on October 16, 1985, and the following are the Court's findings of fact and conclusions of law.

On August 17, 1979, the M/V C.R. Clements was pushing a tow of 15 empty grain barges up the Mississippi River. The M/V C.R. Clements is owned and operated by the Defendant, Republic Marine, and at that time was under the command of Pilot Omar Keel. The tow was arranged in three strings of five barges each, and the complete tow measured approximately 105 feet wide by 975 feet long. The tow boat was faced up to the last barge in the center. Barge CCT-124 was the stern-most barge in the starboard (right) string. The Defendant, ContiCarriers and Terminals, Inc., is the owner of barge CCT-124 for purposes of this suit, because it had bareboat chartered the barge from its owner, Republic National Leasing Corporation.

As part of its trip upriver, the tow boat and its barges had to navigate through Lock and Dam Number 21, located on the Mississippi River near Quincy, Illinois. Lock and Dam Number 21 was built in 1939 by the United States Army Corps of Engineers, which has operated the facility since its construction. Lock and Dam Number 21 was built by the Plaintiff, the United States of America, for the preservation and improvement of the navigable waters of this nation.

Because the lock chamber at Lock 21 is only 600 feet long by 110 feet wide, the tow boat had to divide the tow into two separate "cuts" of barges in order to pass through the lock. The tow boat and its barges approached the lock shortly after noon on August 17, 1979. At that time the lock was being operated by lockmen Jerome Peter and Leonard Whipps, who directed the procedures for entering and exiting the lock. The M/V C.R. Clements pushed the forward nine barges of its tow into the lock chamber of Lock 21 and this first cut of barges passed through the lock without incident and caused no damage to the lock.

Following the lockage of the first cut, the lockmen reduced the water level in the lock so that the second cut of barges and the tow boat could enter. The second cut consisted of six barges, two long and three wide, and the M/V C.R. Clements itself.

Prior to the second cut entering the lock, the barges and the tow boat lay along the downstream guide wall of the lock, located on the Illinois side of the lock facility. As the lock employees lowered the water level in the lock chamber, the turbulence caused the boat and its tow to swing out at a slight angle from the guide wall. Lockman Jerome Peter advised Captain Keel that his stern was too wide, and that he would have to get closer to the east (Illinois) wall before he could enter the lock. Lockman Peter also advised the Captain to keep the starboard side of his tow close to the east side of the lock because repairs were being made to the concrete structure on the west side of the lock opening. Captain Keel complied with these orders, and in doing so the starboard side of his tow came into contact with the east guide wall at a point downriver from where the lock wall was subsequently damaged.

The lock gate is hinged in a recess in the wall of the lock chamber in such a way that when fully opened, the gate, lying within the recess, forms a flush surface along which the tows can be pushed. The vertical outside corner formed by the lock wall and the downstream end of the gate is protected by a steel angle called an armor plate, designed to protect the concrete corner of the lock wall. The armor plate is approximately 15 feet long, with each side of the plate approximately six inches in width and about 3/4 inch thick. The armor plate is set into the concrete corner of the lock wall in such a manner so as to present a flush surface with the wall and protect the edge of the concrete wall from damage when barges rub against it.

The Barge CCT-124 is 35 feet wide, 200 feet long, and 12 feet deep. Fitted to each side, approximately 23 inches below the deck were three rub bars, one near each end of the barge and one mid-ship. The rub bar is a 3/4 inch thick steel plate, extending about eight inches high and 36 inches forward and aft. The rub bar acts as a buffer to prevent damage to the wall of the barge when it comes into contact with anything.*fn1

As the tow boat pushed the second cut of barges into the lock, Captain Keel kept the starboard side of the tow sliding along the east wall of the lock. The lock chamber is 110 feet wide, only five feet wider than the tow being pushed by M/V C.R. Clements. In order to enter the lock, the tow had to be lined up almost exactly straight with the entrance of the lock chamber, and the best way for the tow to stay away from the west side of the lock was to slide along the east wall of the lock chamber.

While the tow boat pushed the second section of barges into the lock, Barge CCT-124 caught on the armor plate and pulled loose from the wall both the armor plate and some attached concrete. The United States Army Corps of Engineers made emergency repairs to the corner of the lock wall immediately after the collision. The Corps began the major repair work in January, 1980, and completed the repairs in February, 1980, restoring the armor plate and surrounding concrete work to its original condition. The total cost of the repairs was $29,974.41, including $1,906.67 for administrative overhead.

Following the incident, Captain Keel observed two burrs extending from the edge of the protection angle and fresh scratch marks on the side of the barge which had apparently been made when the rub bar passed up against the burrs on the protection angle. The cause of these burrs is unknown and it is also unknown as to how long these burrs had been present on the angle iron at the corner of the lock wall prior to the accident. The evidence does not establish how far these burrs extended from the plate into the lock chamber, but they were not particularly discernible in the absence of a minute inspection.

The United States brought suit against the M/V C.R. Clements, in rem, Barge CCT-124, in rem, Republic Marine, Inc., as owner of the tow boat, in personam, and ContiCarriers and Terminals, Inc., as owner of the barge, in personam, pursuant to 33 U.S.C. § 408 and 412. The United States also brought an action premised upon negligence, but the Government dismissed that cause of action at the commencement of the trial.

Republic Marine, Inc. filed a cross-claim against ContiCarriers for indemnity and contribution, alleging that Barge CCT-124 was unseaworthy and that ContiCarriers breached its warranty of seaworthiness to the tow boat operator. ContiCarriers filed a cross-claim against Republic Marine and brought a third party action against Dravo Corporation, the shipbuilder which constructed Barge CCT-124, alleging that the barge was unseaworthy and its unseaworthy condition caused the damages sued for by the Government.

This case presents some difficult questions for the Court, because it raises issues involving strict liability, contributory negligence, and causation. While the case law on these matters is somewhat helpful, none of the cases really address the particular situation with which the Court is presented in this case.

The statutes under which the Government brings suit are sections of the Rivers and Harbors Act of 1899, which has been modified slightly since its ...

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